Piggott v Director of Public Prosecutions [2008] EWHC 305 (Admin)

[2008] EWHC 305 (Admin)

Case No CO/3082/2007

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice

Date Friday, 8th February 2008

Strand

London WC2

B E F O R E:

LORD JUSTICE MOSES

MR JUSTICE SULLIVAN

Between

MELISSA EVANS PIGGOTTAppellant

-v-

Between

DIRECTOR OF PUBLIC PROSECUTIONSDefendant

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Mr Pete Weatherby (instructed by the Crown Prosecution Service) appeared for CLAIMANT

Mr Ian Goldsack (instructed by the Director of Public Prosecutions) appeared for DEFENDANT

J U D G M E N T

LORD JUSTICE SULLIVAN:

[1]This is an appeal by case stated against a decision of the Sheffield Magistrates' Court on 24th November 2006 convicting the appellant of an offence of failing to provide a breath specimen without reasonable excuse, contrary to section 7(6) of the Road Traffic Act 1988. There was no dispute that the appellant had been required to provide two specimens of breath in accordance with the requirements of section 7 and that she had failed to do so. The issue before the justices was whether she had a "reasonable excuse" for that failure.

[2]In paragraph 2 of the case stated the justices said that the following facts were not in dispute. "A) On 22 April 2006 at 01.00 hours PC Armstrong and PC Leach attended at Malvern Road, Darnall in response to reports of a road traffic collision. B) At approximately 01.03 hours the Appellant was followed by the officers and was observed to stop outside 43 Industry Road, alight from the driver's seat and approach the police vehicle. C) The Appellant was arrested at 01.05 hours on suspicion of being unfit to drive a motorcar through the consumption of drink or drugs. She was not required to provide a breath test at the scene, but was required to provide a roadside type breath test once at the police station. D) PC Henderson was called to operate the Lion Intoxilyzer and at 02.24 hours asked the Appellant if she agreed to provide two specimens of breath for analysis. The Appellant agreed but then failed to provide sufficient breath for a specimen to be obtained. E) PC Henderson again asked the Appellant if she agreed to provide two specimens of breath and the Appellant again agreed but then failed to provide sufficient breath. In total the Appellant made four attempts to provide specimen, each attempt lasting approximately half a second. F) When then asked by PC Henderson if there were any medical reasons why she could not provide two specimens of breath, the Appellant answered 'No'. G) The Appellant was not suffering from an asthma attack when attempting to provide the specimens of breath or when she was arrested. H) In a medical report prepared on behalf of the Appellant and accepted by the prosecution, Dr Bruce John Hutchcroft, specialist in respiratory medicine, stated that in his opinion 'there is a medical reason why (the Appellant) failed to give a breath specimen', namely that she suffered from asthma and hyperventilation syndrome. We accepted the contents of this report. I) PC Armstrong signed the form MG DD/A as having witnessed all of the breath test procedure. PC Armstrong assisted PC Henderson by completing A1-A3 of the Intoxilyzer pro forma. These matters were confirmed by PC Armstrong in evidence. J) The Appellant did not at any point tell PC Henderson that she suffered from asthma or that there was any medical condition that could affect her ability to provide specimens of breath."

[3]The magistrates then set out the rival contentions of the parties in paragraphs 3 and 4 of the case stated:

"3. It was contended by the Appellant that: A) On the evening in question the Appellant had gone out in her Mother's car to visit her cousins and had only drunk half a pint of lager at around 10.00 hours. B) The Appellant told PC Armstrong just prior to arrest that she could not blow very hard. C) Whilst PC Henderson was preparing the mouthpiece of the Lion Intoxilyzer the Appellant told PC Armstrong that she would try the best she could but that she suffered from asthma. PC Armstrong replied that there was a doctor's room nearby if anything happened. PC Henderson was about twenty feet from them during this conversation. D) Having told PC Armstrong she suffered from Asthma the Appellant did not feel she needed to tell PC Henderson. E) On being required to provide two samples of breath for analysis the Appellant put her mouth over the mouthpiece of the Lion intoxilyzer and tried the best she could. 4. It was contended by the Respondent that: A) On arrest the Appellant was drunk, smelt strongly of intoxicants and was unsteady on her feet. In the police station the Appellant appeared agitated, abusive and drunk, and was swearing and shouting. B) A roadside breath test was not carried out prior to arrest as PC Armstrong felt the Appellant was so clearly unfit to drive through drink or drugs that the test was not necessary and it would not have assisted him in his decision to arrest her. C) The Appellant made only half-hearted attempts to provide breath specimens; she was not trying or making any real effort to provide a breath sample. D) Having failed after four attempts to provide a specimen, the Appellant told PC Henderson, 'I don't have to - you can't make me do this'. E) The Appellant did not say anything to PC Henderson or PC Armstrong concerning her medical condition, neither officer was aware that the Appellant suffered from asthma or any medical condition which could have prevented her from providing adequate breath specimens."

[4]In paragraph 5 the justices said that they were referred to the case of Teape v Godfrey [1986] RTR 213. In paragraph 6 they said:

"We were of the opinion: A) Although the medical condition may have been mentioned to PC Armstrong, the Appellant on two occasions failed to provide sufficient breath for a specimen to be taken without giving any explanation for that failure to the officer requiring her to provide the specimens, and then, on being directly asked if there were any medical reason why she couldn't provide specimens the Appellant gave a negative reply. The Appellant therefore had not put forward any reasonable excuse for her failure to provide. B) Following the case of Teape v Godfrey if the Appellant knew that she suffered from a medical condition which might affect her ability to provide a sample she was under a duty to inform the officer making the requirement to provide breath specimens of that medical condition. The Appellant had not informed PC Henderson of her medical condition and we therefore found her guilty of the offence charged."

[5]The two questions for the opinion of this court are set out in paragraph 7 of the case stated as follows:

[6]"(i) Were the Justices correct to find that it was essential for the Appellant to inform the officer requiring her to provide the specimens of breath whether she suffered from any medical condition which could prevent her providing the specimens or (ii) Should the justices have found that the Appellant informing another officer who witnessed the breath test procedure was sufficient?"

[7]It will be noted that the justices did not expressly resolve a number of the matters which were in dispute between the appellant and the respondent in paragraphs 3 and 4 of the case stated, for example whether the appellant had "tried the best she could" to give the two samples of breath or whether "she was not trying or making any real effort to provide a breath specimen."

[8]However, it is implicit in the justices' opinion in paragraph 6 of the case when read in conjunction with the two questions posed in paragraph 7 of the case, that the justices must have rejected the respondent's contention that the appellant was not trying or making any real attempt to provide a breath specimen. I say that because if they had reached the conclusion that the appellant had made no real attempt to provide a breath specimen, both of the questions in paragraph 7 would have been otiose. Teape v Godfrey referred to by the justices in paragraph 5 of the case stated establishes the proposition that a defendant who refuses or deliberately fails to give a sample cannot subsequently rely on medical grounds as a "reasonable excuse" because there will be no causal connection between the medical condition and the refusal or deliberate failure to provide a specimen (see per Kennedy LJ at page 220E to J). Thus, if the appellant had made no real attempt to provide a breath specimen, it would have been of no consequence whether she had informed either PC Henderson or PC Armstrong or both or neither of them about her medical condition.

[9]Dr Hutchcroft's medical report, which had expressed his opinion that "there is a medical reason why the appellant failed to give a breath specimen" was not in dispute.

[10]On behalf of the respondent, Mr Goldsack frankly acknowledged that he was in difficulties, given the way in which the justices had stated the case. He had submitted in his skeleton argument that it was "not necessarily the case that the justices found that the appellant was suffering from a medical condition at the relevant time or that it [ie the medical condition] was the reason for her failure to provide specimens of breath." I am unable to accept that submission. Had the justices not accepted that there was objectively a medical reason why the appellant was not able to provide the required specimens despite making genuine attempts to do so, then the two questions in paragraph 7 simply would not have arisen. The justices' opinion in paragraph 6 that the appellant's medical condition "may have been mentioned to PC Armstrong" makes it clear that that issue having been raised by the appellant in her evidence, the justices thereafter could not be sure that she had not mentioned her medical condition to PC Armstrong. These matters might appear somewhat obvious, but I mention them because Mr Goldsack in his skeleton argument challenged the adequacy of the findings in the case stated and sought to supplement them with extraneous material including such material as witness statements, the clerk to the court's notes of evidence and submissions, and an exchange of correspondence with the District Legal Director of the South Yorkshire Area of Her Majesty's Court Service. He did not press that point in his oral submissions before us and in my judgment he was right not to do so because those additional documents are not admissible before us.

[11]In an appeal by case stated the parties are bound by the terms of the case as stated by the magistrates. That applies with equal force to both the CPS and the defendant in the criminal proceedings. Other than documents referred to in the case stated, further evidence as to what the justices did or did not find is inadmissible. If either party is dissatisfied with the case as stated, then the appropriate remedy is to seek permission to apply for judicial review for an order of mandamus requiring the justices to amend or restate the case. If that is not done, the parties, and this court, must simply do their best with the case as stated. That of course does not mean that isolated phrases in the case stated should be construed in a legalistic or a pedantic manner. The case stated should be read as a whole and in a common sense way. If that is done it is clear that the justices did not convict the appellant because they believed that there was no medical reason for her failure to give a sample or because they believed that she had not genuinely tried to give a sample. She was convicted because she had told the wrong officer - PC Armstrong, the arresting officer, rather than PC Henderson, the officer responsible for obtaining the specimens, about the medical problem that was the reason for her failure to give a specimen.

[12]Before answering the questions posed in paragraph 7 of the case stated it seems to me that there is a prior question: was the appellant under any legal obligation to inform either officer of her medical condition? Or was it sufficient for the purposes of a defence under section 7(6) that her medical condition was in fact the reason for her failure to provide a specimen?

[13]The starting point must be the words of the subsection itself:

"(6) A person who, without reasonable excuse, fails to provide a specimen when required to do so in pursuance of this section is guilty of an offence."

[14]Thus the statutory question is whether there is a reasonable excuse for the failure: not whether that reasonable excuse has been communicated to the officer requiring the provision of a specimen or indeed to anybody else. A failure to mention an excuse at the time when the specimen is required will be a highly relevant, and may well be a decisive factor against the defendant, when the justices are deciding whether or not the excuse belatedly proffered for the failure was a reasonable one. If a defendant says nothing about a medical condition of which he or she is well aware, it is highly likely that the justices will reach the conclusion that the failure to produce the specimen was wilful and that the defendant had not made a genuine attempt to provide a specimen. However, that is a matter of evidence to be considered on a case-by-case basis and I can see no justification for importing an additional legal requirement that there should be notification into subsection (6).

[15]Before the magistrates and this court, the respondent relied on certain observations of Forbes J in Teape v Godfrey. Having agreed with the judgment of Kennedy J Forbes J added at page 221F to H:

"If a man knows that he suffers from a medical condition which prevents him giving sufficient breath, his duty to provide a specimen must include, in those circumstances, a duty to inform the constable making the requirement of that medical condition. He having done so, the constable may, of course, require an alternative specimen or he may insist on a breath specimen. If he does the latter, he runs the risk that any consequent prosecution may well fail, if the medical condition can be justified by evidence, on the grounds that the defendant has a reasonable excuse for failing to provide a specimen. Of course, if the man does not have any knowledge of his medical condition or its effect on his providing a breath specimen, he can hardly be under such a duty to inform the constable. But I feel quite satisfied that if he does know, then his duty to provide a specimen includes a duty to inform the constable of his medical condition so that a specimen can be provided in those circumstances."

[16]It is common ground that these observations were obiter because as Forbes J himself acknowledged in the final paragraph of his judgment, the question of reasonable excuse did not arise on the facts of that case because the defendant had deliberately failed to provide a specimen.

[17]As Mr Weatherby pointed out on behalf of the appellant, although Teape v Godfrey has been followed in a number of cases, they have all been cases where the defendant has deliberately refused or failed to provide a specimen, and not cases where the defendant has made a genuine attempt to provide a specimen but failed in the attempt for some medical or other reason. He also points out that the obiter dicta of Forbes J have been the subject of criticism in Wilkinson's Road Traffic Offences (see paragraph 4-127), and in two authorities: McClory v Owen-Thomas [1989] SCCR 402 and DPP v Kinnersley [1999] RTR 105. In the first of those cases the Lord Justice-General said at page 408 between B to D:

"We have no hesitation in saying, with all due respect, that we do not approve of the observations of Forbes J in Teape which were drawn to our attention. The learned judge declares that a person who knows that he suffers from a medical condition which may affect his ability to provide a specimen of breath has a duty to disclose it when the requirement is made, so that the officer making the requirement may consider the use of his power under section 8(3) to require the provision of a specimen of blood or urine instead of breath. He does not, however, go on to explain what the sanction is if a person fails to fulfil that duty. If Forbes J intended it to be understood that a failure to fulfil the duty would have the result that the question of reasonable excuse could not thereafter be put in issue at his trial, then we totally disagree with him. The offence under which section 8(7) is not one of failing to provide a required specimen coupled with a possible defence of reasonable excuse. The offence is of failure without reasonable excuse. The onus of proving this offence is undoubtedly upon the prosecutor and to succeed in a prosecution he must, whenever the issue of a possible reasonable excuse is introduced, establish that the failures was without reasonable excuse. There is nothing in the language of section 8 which puts any onus upon a motorist to disclose anything to the officer who requires him to provide a particular specimen or specimens, or which would relieve the Crown of the burden of proving the absence of reasonable excuse, an essential ingredient of the offence under section 8(7), if, at the police station, the motorist merely fails or refuses to provide the specimen or specimens without giving any explanation."

The reference in the Lord Justice-General's judgment to section 8 was to section 8 of the Road Traffic Act 1972; but there is no material difference between the language of section 8 and section 7 of the 1988 Act with which we are concerned.

[18]In the second case, which was concerned with whether the justices were entitled to find special circumstances for not disqualifying a convicted driver, Rose J said at page 114L to 115A:

"As to the passage which Mr Carter-Manning relies on in the judgment of Forbes J in Teape v Godfrey, to which Pill J has referred and indeed cited, I respectfully differ from the view there expressed. It was clearly obiter. It does not appear that the effect of the caution to which I have just referred was considered. Furthermore, neither the Road Traffic Act 1988, nor its precursors impose any obligation to declare a medical condition to the police as a necessary prelude to establishing reasonable excuse."

[19]For my part I respectfully agree with the observations in those two authorities. Mr Goldsack sought support for his submission that the dicta of Forbes J were correct in the decision of Davis J in R (on the application of Martiner) v DPP

[2004] EWHC 2484 (Admin)

. In that case the appellant had refused to provide a blood sample. He did not give any medical reason for his refusal when asked for the sample but subsequently produced medical evidence before the district judge that he suffered from a moderate needle phobia. Although Davis J approved the dicta of Forbes J, it is clear that he was doing so for the primary purpose of equating the position of a defendant who fails to provide a blood or urine specimen with that of a defendant who fails to provide a specimen of breath (see paragraph 29 of his judgment). He was concerned (as paragraph 32 of his judgment makes clear) with the position of the defendant who refused or deliberately failed to provide a specimen, not with the position of the defendant to attempted to give a specimen but failed to do so because of a medical condition: He said:

"32. In my view, therefore, if no attempt is made to provide the specimen requested and no reasonable excuse is advanced, particularly where the defendant knows of such excuse but deliberately chooses not to avail himself of it, then the position is exactly as stated by the district judge. The position is no different with regard to requests for specimens of blood (or urine) to that applicable (as established by authority) in the case of requests for specimens of breath. In my view, were the position otherwise, that would be an affront to commonsense, and would not advance the evident policy behind the Act. There can, after all, be no hardship on a defendant in a case such as this, if he knows of a reason as to why he cannot even attempt to supply a blood specimen, from him frankly saying so. The advantage, of course, in him doing so, and the reason why he should do so, is that it then enables the police officer in question to consider taking alternative steps, such as seeking a medical opinion or considering requiring a urine sample or something like that. It does not seem to me to be right that, in effect, defendants in this position can subsequently seek to take advantage of their own deliberate failure to advance an excuse known to them for not attempting to provide the requested specimen."

See also paragraph 21 in which Davis J noted that "this appellant seems to have made no attempt to provide a blood sample as requested."

[20]Mr Goldsack submitted that if there was no obligation to disclose a medical condition of which the defendant was aware, that would produce unfairness and/or render the statutory scheme unworkable, because in the event of the failure to provide a breath specimen the officer requesting the specimen has power under section 7(3)(a) to require a specimen of blood or urine as an alternative.

(a) provides:

"A requirement under this section to provide a specimen of blood or urine can only be made at a police station or at a hospital; and it cannot be made at a police station unless -- (a) the constable making the requirement has reasonable cause to believe that for medical reasons a specimen of breath cannot be provided or should not be required, ..."

[21]Mr Goldsack submitted that as a matter of policy, therefore, in order to render subsection (3)(a) workable, if the person from whom the specimen was sought knew of the medical reason why they were unable to provide the specimen they should disclose it to the officer conducting the procedure so that the officer could then consider whether it was appropriate to require an alternative form of specimen under that subsection.

[22]I can see the force of that argument, although perhaps the force is limited in practical terms because the officer will not have medical qualifications and some defendants may have difficulty in giving a sufficiently accurate description of their medical condition. But whatever the practical difficulties, in my judgment they do not warrant importing the limitation sought by the respondent as a legal requirement. In the context of a statute which creates criminal offences, it would not be appropriate for this court to graft a non-statutory limitation onto the defence of "without reasonable excuse" which is incorporated into the description of the offence itself in section 7(6). I would, however, repeat that in the great majority of cases a failure to mention a medical condition at the time, if the defendant is well aware of that condition, may very well result in the magistrates concluding as a matter of evidence that the excuse belatedly proffered was not a reasonable excuse because in reality there was a wilful refusal or failure to provide a specimen.

[23]For these reasons, I for my part would allow the appeal and answer question one in paragraph 7 of the case stated "No" and question 2 "Sufficient, yes, but not necessary."

LORD JUSTICE MOSES: I agree. That there is no specific statutory requirement to advance a medical reason for not providing a specimen of breath should not lull those who have failed to do so into the false belief that they can avoid their statutory obligation by keeping quiet as to a medical condition of which they are aware. If you fail to mention a medical condition of which you are aware, the justices are likely to conclude that the medical condition is not the reason why the specimen was refused. They are likely to reject any excuse advanced later for such a failure as being reasonable and are likely to find you guilty.

[25]Thank you both very much. Is there anything else as to costs?

[26]MR WEATHERBY: Could I ask the court first of all to quash the conviction and remit the penalty?

LORD JUSTICE MOSES: Yes, we shall do that.

[28]MR WEATHERBY: And secondly, can I ask the for the costs incurred -- there are two public funds in play - I ask that the cost be same as the condition.

LORD JUSTICE MOSES: Ask for costs out of central funds, is that right?

[30]MR WEATHERBY: Yes, I don't think it is up to us to get the costs --

LORD JUSTICE MOSES: And do you need a legal taxation of legal --

[32]MR WEATHERBY: I don't think I do, but if I do --

LORD JUSTICE MOSES: If you do you may have one.

[34]MR WEATHERBY: I'm obliged.